Commissioner for Fair Trading v Bowes Street Developments Pty Ltd

The Commissioner for Fair Trading (Commissioner) has brought regulatory action against a number of corporate entities associated with two Canberra-based property developers. The conduct alleged concerns a series of false, misleading or deceptive representations made in the course of advertising an apartment development in Woden known as “Grand Central Towers”. The Commissioner has brought proceedings against Bowes Street Developments Pty Ltd (BSD), Geocon Bowes Street JV Pty Limited (GB JV), Zapari Property Bowes Street Pty Limited (Zapari) and GZ Developments Pty Limited (GZ Developments). The Commissioner seeks to amend the pleadings by joining a fifth defendant, GRE Sales Pty Ltd (GRE Sales), and by alleging further contraventions of the Australian Consumer Law (ACL) by the defendants. The defendants oppose the amendments. The Commissioner requires leave of the Court to amend the pleadings, under r 507 of the Court Procedures Rules 2006 (ACT). The Court's general discretion to permit amendments to pleadings is contained in r 502(1) of the Rules. The exercise of that discretion is informed by the case management objectives in s 5A of the Court Procedures Act 2004 (ACT). Relevant factors for consideration include the nature of the amendments, any delay in seeking to amend the claim, the reason for the delay, and any prejudice that might arise, along with efficient case management objectives and regard to court resources. The Court is satisfied that leave should be granted to the Commissioner to join GRE Sales as a fifth defendant. The amendment is necessary to enable the Court to decide all issues in dispute. The Commissioner's application to include advertising on real estate websites as part of the representations pleaded is also permitted. There is a genuine question to be tried as to whether the representations made on the websites constitute misleading or deceptive conduct. The Commissioner's application to include additional contraventions of s 29 of the ACL in respect of the Rental Yield Representations is also permitted. The Commissioner's failure to plead s 29 from the outset is not determinative of the application to amend. The Court is satisfied that leave should be granted to the Commissioner to include a claim for s 239 relief. The Commissioner has established a reasonably arguable case for such relief. Leave is granted to the plaintiff to join GRE Sales Pty Ltd (ACN 167 184 661) as the Fifth Defendant to these proceedings. Leave is granted to the plaintiff to file and serve an Amended Originating Claim and Further Amended Statement of Claim substantially in the form of the documents annexed to the affidavit of Sarah Kate Arthur affirmed 27 April 2021 and marked SKA-1 and SKA-2 respectively. The plaintiff is to pay the costs of the application and any costs thrown away by the amendments.